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In Medicaid Expansion Dispute, a Second Judge Rules Against Maine's Defiant Governor

In a high-stakes and fast-moving legal dispute, Gov. Paul LePage on Monday filed a second appeal of a lower court ruling requiring the administration to move forward with an expansion of Medicaid approved by Maine voters in 2017.

By Scott Thistle

In a high-stakes and fast-moving legal dispute, Gov. Paul LePage on Monday filed a second appeal of a lower court ruling requiring the administration to move forward with an expansion of Medicaid approved by Maine voters in 2017.

LePage's legal team appealed to the Maine Supreme Judicial Court to delay a deadline to file a formal expansion plan while it appeals a court order that it must comply with the voter referendum. The latest appeal followed a ruling Friday by a Kennebec County Superior Court justice denying the administration's request to stay, or delay, a deadline while the litigation continues.

That order also said the executive branch's failure to follow the people's will could engender disrespect for laws.

Nearly 60 percent of Maine voters supported a referendum in November to expand Medicaid health insurance to more than 70,000 adults with incomes at or below 138 percent of the federal poverty level.

LePage has said he will follow the expansion law but not until the state Legislature approves a way to pay for the state's share of expansion costs, which are estimated to be between $50 million and $100 million a year. Advocates argue the state could move forward with existing funds.

LePage's refusal to meet deadlines for the voter-approved expansion prompted a lawsuit and a ruling by Kennebec County Superior Court Justice Michaela Murphy that LePage must submit a formal expansion plan to the federal Centers for Medicaid and Medicare Services. The administration appealed Murphy's ruling to the states' Supreme Judicial Court, which has yet to rule on the underlying dispute.

Both LePage's Department of Health and Human Services Commissioner Ricker Hamilton and attorneys for Maine Equal Justice Partners, which brought the original lawsuit against LePage, have urged the high court to expedite its hearing on the LePage appeal.

At issue in the latest ruling and appeal is whether the LePage administration is required to meet deadlines to comply even as it tries to overturn the ruling in the state's Supreme Court. The actual deadline was June 11, and it's not clear how quickly the administration would have to comply if it loses the appeal.

In Friday's ruling denying the administration any additional time, Murphy said LePage's attorneys had not established a likelihood of success on the merits of their appeal and that public interest would be adversely impacted were the stay allowed. She also wrote that the harm to those who would become eligible to receive Medicaid benefits outweighed any potential harm to the state.

"The executive branch's refusal to act and follow the will of the people ... has the potential to engender disrespect for duly enacted laws," Murphy wrote.

The LePage administration argued in Monday's appeal that the state shouldn't be forced to file a federal application without first ruling whether the state must move forward.

"This case raises tremendously consequential and far-reaching issues regarding the separation of powers and Maine's long-term fiscal health," Patrick Strawbridge, the attorney hired by LePage to represent the state in the expansion case wrote in his appeal to the law court. "The Superior Court's order required the (Health and Human Services) commissioner to make a binding commitment to the federal government to expand the state's Medicaid program even though none of the necessary funding or staffing to effectuate the expansion has been appropriated by the Legislature."

Strawbridge, a Boston-based attorney, represents the administration because Maine Attorney General Janet Mills, now a Democratic candidate for governor, declined to make anyone from her office available for the case.

LePage and his allies have acknowledged, begrudgingly, that Medicaid expansion is law, but have said their hands are tied until funds are specifically appropriated. Medicaid is funded mostly at the federal level, but the state of Maine is required to contribute its own funds. Thirty-one other states already have expanded Medicaid under the provisions of the Affordable Care Act.

Meanwhile, the Legislature, which adjourned in May after lawmakers were unable to reach agreement on among other things, a funding means for the expansion, was expected to reconvene in a special session on Tuesday.

The estimated cost of expansion was one of the major sticking points. The Legislature's nonpartisan Office of Fiscal and Program Review estimated that it would cost $45 million in the first year, but the LePage administration argued that it would cost much more and that it would only increase in future years suggesting it could cost the state as much as $100 million a year.

The expansion will open up the program to Mainers who earn 138 percent of the federal poverty level, $16,753 per year for an individual or $34,638 for a family of four.

It remained unclear late Monday, whether a partial funding bill, which would appropriate about $3 million for covering the state's administrative costs associated with expansion, would be in the mix.

Democratic lawmakers have also argued the state has the funding available in its surplus revenues to launch the expansion plan, which would take several years to reach the anticipated state costs. Under the expansion the state's share of expansion would be matched with federal funds at about a 10:1 ratio meaning the state would received about $500 million a year for each $50 million it spent on an expanded Medicaid program.

(c)2018 the Portland Press Herald (Portland, Maine)

Caroline Cournoyer is GOVERNING's senior web editor.
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